March 25, 2025 from Medscape
For decades, doctors facing malpractice claims have successfully defended themselves by citing customary medical practice. But a new update from the American Law Institute (ALI) is challenging that long-standing norm.
The ALI, a respected nonprofit that influences legal standards across the U.S., is urging courts to judge medical negligence based on what a reasonable doctor using up-to-date scientific evidence would do—not just what’s typically done in the profession.
This change comes after high-profile cases like that of Dr. Daniel Merenstein, a Virginia physician who was sued for not ordering a PSA test for a patient with no clear symptoms. Although he followed national guidelines and discussed the risks and benefits with the patient, a jury sided against him—penalizing evidence-based, patient-centered care in favor of outdated habits.
Evidence Over Tradition
According to the ALI’s May 2024 update, courts should stop relying on “local custom” or traditional practices to define the standard of care. Instead, judges and juries should evaluate whether the physician’s actions were reasonable based on current medical evidence.
“This helps ensure patients receive safer, more modern care,”
said Christopher Robertson, JD, PhD, who advised the ALI and co-authored a summary of the update in JAMA.
“It also protects physicians who are following science, not just habits.”
What This Means in Court
Previously, many doctors could defend lawsuits by saying, “That’s just how we do it.” But ALI’s guidance shifts the focus. While doctors can still cite customary practices, they’ll also need to show that those practices align with modern science.
This could reduce “defensive medicine,” where physicians order unnecessary tests to avoid legal risk rather than improve patient outcomes.
As malpractice lawyer Michael Moroney put it,
“We’re moving from gut feelings and routine to analytics—like baseball did. But you still need judgment.”
Informed Consent Also Under Review
The ALI also proposes changes to how informed consent is evaluated. Historically, courts asked what a “reasonable patient” would do with more information. The ALI suggests a shift toward the individual patient—asking whether that specific patient would have chosen a different path if they were fully informed.
Lawyer Catherine Flynn, who defends providers, notes that most jurisdictions still use the “reasonable patient” standard, but acknowledges the ALI’s influence may eventually reshape this part of the law as well.
Communication and Documentation Are Key
Legal experts agree: better documentation and clearer patient communication will be essential in this new legal landscape.
“Physicians who document their thought process—why they chose a treatment and how it aligns with the best available evidence—will be better protected,”
said Ben Flattery, JD, who represents hospitals and works in medical risk management.
He added that good communication helps prevent lawsuits before they begin.
“If patients feel respected and understand their care, they’re less likely to sue.”
Attorney Amy Griggs echoed the point:
“Most malpractice claims stem from breakdowns in communication—either with the patient or between providers. Fix that, and you fix a lot.”
This shift by the ALI signals a major turning point in how malpractice is judged. Doctors who follow evidence and engage patients in informed decisions may finally receive legal backing for doing the right thing—science, not custom, is the new standard.
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